SB 1070 ruling spurs renewed calls for immigration reform

From the moment the U.S. Supreme Court struck down key provisions of Arizona's immigration law last week, a chorus of experts, activists and elected officials renewed a call for Congress to reform immigration laws at a federal level.

But any such effort may be as doomed now as it has been in the past.

Immigration experts and even die-hard supporters of reform say Congress may never pass a massive bill that tackles all aspects of the nation's broken immigration system, including the 11.5 million immigrants living in the U.S. without legal status.

More likely, Congress will pass a scaled-down version of the sweeping immigration-reform bills that failed in 2006 and 2007, or take a piecemeal approach. But even that could take years depending on who wins the presidential election, leaving open the question of when, if ever, comprehensive reform will occur.

"Ever? Yes. In the near future, no," said Louis DeSipio, a political-science professor at the University of California-Irvine.

Legal experts say the high court's ruling last week, which struck down three provisions of the Arizona law known as Senate Bill 1070, underscored the federal government's role in regulating immigration and cast doubt on what states should attempt on their own.

Congress, meanwhile, has almost abandoned the bipartisan approach needed to produce a workable immigration-reform policy, and so far, analysts say, no president has been willing to expend enough political capital to force action.

DeSipio said he believes Congress will eventually pass some sort of reform because the issue is so important to the nation's economy, but historically, it has taken years to build a consensus on immigration issues.

"Periodically there has been sort of a national convulsion and a national concern about immigration and a lot of legislative foot dragging, but eventually some sort of compromise is reached that deals in some way with the problem of that day," he said.

Previous attempts

The most pressing and thorny issue is what to do about the undocumented immigrants already in the U.S.

Earlier bipartisan attempts in Congress to pass comprehensive immigration reform, led by, among others, Arizona Republicans Sen. John McCain and Rep. Jeff Flake in 2006 and Sen. Jon Kyl in 2007, ended up unraveling in large part because they included a pathway to citizenship for illegal immigrants, which conservative Republicans vehemently opposed as a form of amnesty. McCain, Flake and Kyl have since backed off comprehensive immigration reform, arguing that the government must secure the border with Mexico first.

As Congress stumbled, states entered the picture, with Arizona often in the lead, and the number of measures has grown in recent years. An analysis by the non-profit Center for Immigration Studies found that, in the first six months of 2011, state legislatures introduced 53 immigration-related measures, many based on SB 1070.

Some of the more specific measures have been seen as successful, such as the requirement that employers verify the employment eligibility of new hires with the federal E-Verify database. But the Supreme Court's rejection of key provisions in SB 1070 has raised questions about whether state-only reform could pass court muster.

"The court didn't leave states a lot of room on the issue," said Jill Family, associate professor at Widener University School of Law in Harrisburg, Pa. "In fact, it seems clear that states can't make their own immigration policy."

Todd Landfried of Arizona Employers for Immigration Reform noted that while the court upheld the "papers, please" provision, it did not explicitly endorse the requirement that police check the status of people they suspected of being in the country illegally.

Instead, the justices said the provision on its face was constitutional but expressed concerns that it could be ruled unconstitutional if in practice it leads to civil-rights abuses.

"For those of us who are arguing on behalf of sensible immigration reform, it doesn't make any sense for states to get involved because it's clearly pre-empted by federal law," Landfried said.

The president's role

Even before the high court affirmed the federal government's authority on the issue, some Republicans tried to blame the lack of progress on the White House, suggesting that President Barack Obama should have moved sooner.

In a joint statement last week after the SB 1070 ruling, McCain and Kyl focused on what they described as Obama's poor border-enforcement efforts, saying the state law was born out of "frustration" with the administration's policies.

Flake, who is seeking the GOP nomination to replace the retiring Kyl, sounded a theme repeated often last week: "With its efforts suing Arizona, the Obama administration has focused time and resources that could have been better spent securing the border."

Freshman Rep. Paul Gosar, a Republican running in Arizona's 4th Congressional District, was more direct: "You can't have immigration reform until you secure the border. You've got to stop the flow (of undocumented immigrants), adjudicate the law and then figure out what the problem is. We don't even know what the problem is. The number of people (illegally) in the United States are just estimates."

He said for Democrats to call for passing comprehensive immigration reform after the SB 1070 ruling is "ridiculous."

"They couldn't even do it when they had super-majorities in the House, the Senate and the presidency," Gosar said.

Faced with questions about his own position last week, Mitt Romney, the presumptive Republican presidential nominee, also turned the subject to Obama.

"It's only one more place where he's failed to lead," Romney said during a fund-raising event last week in Scottsdale.

But political experts say immigration reform is an issue so complicated and full of political land mines that a president must make reform a priority and, so far, no one has.

"It requires a president with a full store of political capital," said Dan Schnur, director of the Jesse M. Unruh Institute of Politics at the University of Southern California and national communications director of Sen. John McCain's 2000 presidential campaign.

"George W. Bush has said that he should have started his second term with immigration reform instead of Social Security," Schnur said. "He would have been in a better position to build political support. It's hard to see a President Obama or President Romney making this a priority next January."

Schnur said Obama's decision last month to stop deporting some young illegal immigrants brought to this country by their parents may have hurt his ability to work with Congress.

Obama's administrative step was nearly identical to a proposal offered by Sen. Marco Rubio, R-Fla., but many Republicans accused the president of trying to circumvent Congress.

Romney, meanwhile, has taken positions on immigration that appeal to the most conservative elements of his party, leaving him little room to move to the center on reform, Schnur said.

"It looked like Rubio was trying to throw him (Romney) a lifeline, and he decided not to take it," Schnur said. "He has laid out an immigration proposal, but it's miles and miles away from anything resembling naturalization. It's hard to see that changing."

What it would take

One thing is for sure.

"It's not going to happen this year," said Doris Meissner, former commissioner of the Immigration and Naturalization Service who is now a senior fellow at the Migration Policy Institute in Washington, D.C. "There is no indication for Congress to pick up an issue like this," she said.

Obama's decision to temporarily halt the deportation of young undocumented immigrants is a sign that a piecemeal approach to immigration reform is gaining steam over a comprehensive overhaul, she said. Tackling the issue in smaller bites may prove more politically palatable, she said. "The way it is looking right now, I would say a more piecemeal approach is more likely, but I don't preclude comprehensive immigration reform from happening depending on what happens in the election," she said.

DeSipio, of UC-Irvine, said passing immigration reform will take the willingness of some Republicans to cross the aisle to come up with a compromise that would make it easier for highly skilled workers to get green cards; a guest-worker program allowing low-skilled workers to meet demands for labor in agriculture and other industries; and a broad legalization program that addresses a large share of the 11.5 million undocumented immigrants in the U.S.

The compromise also would most likely include a shift in the legal immigration system toward criteria based on job skills rather than preferences to family members.

"Any comprehensive reform has to deal with legal immigration also," he said.

But DeSipio is not optimistic that Congress will reach any sort of compromise anytime soon.

Even if Obama, a supporter of comprehensive immigration reform, is re-elected, even a "modest" immigration-reform bill will be almost impossible to pass unless Democrats retake control of the House from Republicans and retain majority control of the Senate.

"I think the election in 2010 of 'tea party' Republicans into the House and to some degree into the Senate pushed it further away because they don't seem open to compromise really on any issue, including immigration," DeSipio said. "I think we will get comprehensive immigration reform as soon as the Democrats and the Republicans particularly in the House are able to find some middle ground on a range of issues."

That could take longer if tea-party Republicans elected in 2010 remain in office past the election in November, he said.

What reform might include

Ali Noorani, executive director of the National Immigration Forum, a Washington, D.C., advocacy group, said his organization will continue to push for comprehensive reform that includes three key components: a legalization program for undocumented immigrants, a "functioning" legal immigration system that makes it easier for low- and high-skill workers to enter the country; and enforcement that keeps "communities safe."

But until that happens, Noorani said he would settle for a piecemeal approach that includes passing smaller bills such as the Dream Act, which would legalize young illegal immigrants brought to the U.S. as minors; AgJobs, which would legalize undocumented farmworkers; and STEM, which stands for Science, Technology, Engineering and Mathematics, a proposal that would give green cards to foreign students who graduate from U.S. universities with high-tech degrees.

"I can't say 'yes, (comprehensive immigration reform) is dead' and 'no, it's not,' " Noorani said. "I don't think it's possible to know what the legislative market will bear (after the election). If that legislative market is limited to the Dream Act, we are going to pass the Dream Act. If it allows for Dream Act, AgJobs, and (visas for) high-skill (workers), we are going to pass all three of those. If it allows comprehensive (reform), we are going to pass comprehensive."

He said eventually, however, Congress will have to decide what to do about the 11.5 million undocumented immigrants in the U.S.

Noorani said he believes there is growing support for comprehensive reform that in the past mostly came from Latinos but is now coming from business groups, law-enforcement groups, and religious leaders, including evangelicals influential with Republicans. "There is a new consensus on immigrants in America that is emerging, and it's coming from people who hold a Bible, wear a badge and own a business," Noorani said.

What might happen

Polls consistently show public support for comprehensive immigration reform, including measures that would allow some illegal immigrants to remain in this country. But so far, the poll numbers haven't been able to bridge the gap between the far right and left of the two major parties.

Frank Sharry, executive director of America's Voice, which advocates for comprehensive reform, said he is convinced Obama will make the issue a priority if he is re-elected. But that doesn't mean it will actually pass, despite polls that show Americans support comprehensive reform.

"What's missing is Republicans," Sharry said. "For me, there are going to have to be Republicans who come to the table and work with Democrats to get this done."

That is unlikely to happen unless Republicans like McCain and Flake, who have supported comprehensive immigration reform in the past, get behind the issue again.

"Honestly, the only reason there was a bipartisan comprehensive immigration push in 2006 and 2007 was because of Arizona Republicans," Sharry said. "It was McCain and Flake and (former Rep. Jim) Kolbe in 2006 and then Jon Kyl stepped in in 2007, and both those efforts came close but fell short."

Sharry said he is confident comprehensive immigration reform will happen, but the question remains when. If Obama is re-elected, he thinks there is "maybe a 30 to 40 percent chance" that there will "at least be a push for it" in the first 18 months of Obama's second term.

"What makes me pessimistic is that the House will probably stay Republican, and I can't imagine them cutting a deal," Sharry said.

"A more realistic assessment," Sharry said, is that comprehensive immigration reform won't happen for at least three to six more years, when growing political pressure from Latino voters may force Republicans to bargain with Democrats. "And maybe that's optimistic," Sharry said.

For now, most of the debate simmers around approaches popular with the politically active base of each party, said Schnur, the former McCain aide and director of the USC politics institute.

"There's an old saying in politics that there's no such thing as a raging moderate," Schnur said. "What that means on an issue like immigration is that some very strong feelings and strident voices in the two political end zones can outshout the majority of voters standing between the 40-yard lines."